Since 1976, New York Penal Law Section 240.37 has criminalized loitering in a public place by anyone the police determine is present for the purpose of prostitution.
“Purpose” is not defined in New York Penal Law Section 240.37, thus the reason for one’s presence is ultimately decided by the opinions of arresting officers. On any street, sidewalk, bridge, plaza, park, subway, or inside her motor vehicle, a woman can be arrested for repeatedly beckoning or attempting to engage passers-by in conversation, if police read these actions as intent to engage in prostitution. A woman may be surveilled, searched, and detained, in part because an officer takes issue with her clothing.
When processing Section 240.37 arrests, officers fill out and prosecutors examine pre-printed affidavits. These forms include “indications of prostitution,” such as: the defendant was standing somewhere other than a bus stop or taxi stand; the defendant was carrying money or “sexual paraphernalia”; the defendant was with someone known to have been previously arrested for prostitution-related offenses. None of the choices, in and of themselves, reflect any illegal activity.
The New York City Police Department (N.Y.P.D.) Patrol Guide also instructs officers to inform prosecutors of an arrestee’s clothing, as it is “pertinent information to a probable cause inquiry.” But the N.Y.P.D. offers no objective criteria on what attire is suspect, thus failing citizens the ability to anticipate how their fashion could establish cause for their arrest. Fashion is also usually constitutionally protected behavior.
Police officers make their decisions to arrest often through a strange sexualized gaze.
From 2012 through 2015, nearly 1,300 individuals were arrested in New York City under the law, and data from the New York State Division of Criminal Justice Services show 85 percent of them were black or Latina.
According to a class-action lawsuit filed September 30, 2016 by the Legal Aid Society of New York and Cleary Gottlieb Steen & Hamilton LLP, transgender women are especially victimized, and have been arrested in “sweeps” of places where they gather as a community.
The civil-rights class action was filed against the City of New York and officers of the New York City Police Department on behalf of women who the plaintiffs allege have been wrongly arrested for inherently innocent conduct under New York Penal Law Section 240.37. (The city is moving to dismiss much of the suit.)
These drawings were made in ink, pencil, and color pencil based on the original arrest affidavits created by the N.Y.P.D. For more information on the legal challenge against New York Penal Law Section 240.37, see here. For interviews with women arrested under the statute, as as well as a Legal Aid attorney, see Melissa Gira Grant’s piece in The Village Voice.
